[EL] Alabama redistricting

[Rob Richie]

Thanks for highlighting your article, Nick.

To inject another point in the conversation, one can also show that without
2, Democrats could easily be wiped out of representation in several
southern states. We had a good mapmaker work to build congressional
districts in several southern states using Dave's Redistricting App. We had
him carry several "missions": to do the best simulation of California-type
criteria; to do the best Repulican gerrymander if they  didn't have to draw
 black-majority districts; to do the best plan for seeking equitable
representation of voters by party and race (usually loking incredibly
gerrymandered); and sample multi-winner district plans with fair
representation that regularly enhance opportunities for equitable
representation while maintaining  traditional redistricting standards..

It was telling that it was easy to eliminate  Democratic representation
with mostly compact, "non-gerrymandered looking" districts -- see plans
that do this in Alabama (all districts at least 60% Republican), Louisiana
 Mississippi (all districts at least 56% Republican)and South Carolina (all
districts at least 55% Republican) at
http://www.fairvote.org/assets/Uploads/Redistricting-Reform-in-the-South.pdf

Rob

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On Wed, Mar 25, 2015 at 3:42 PM, Nicholas Stephanopoulos <
nicholas.stephanopoulos at gmail.com> wrote:

> Mike's question is exactly the one I tried to answer in this article
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336749>: how large
> is the gap between Section 2 and Section 5, i.e., what kinds of plans are
> possible after *Shelby County* that weren't on the table before? My
> pessimistic answer is that, actually, quite a few more plans, many of them
> even more egregious partisan gerrymanders, are now possible. More
> specifically, Alabama in all likelihood could now eliminate several
> majority-minority districts without running afoul of Section 2. So in the
> next few months, Alabama may give us a sneak preview of what the 2020
> redistricting cycle will look like. And I fear it won't be a very
> attractive preview.
>
> Nick
>
> On Wed, Mar 25, 2015 at 2:32 PM, Pitts, Michael Jude <mjpitts at iupui.edu>
> wrote:
>
>>  I have a question about Alabama that maybe folks who have better
>> knowledge of the State’s politics will be able to answer.  As I understand
>> it from a big-picture perspective, when the current plan was drawn, the
>> Republican strategy was, essentially, to “pack” the current minority
>> ability to elect districts with minority voters.  Let’s assume that as a
>> result of today’s decision Alabama decides to draw new redistricting
>> plans.  Now, with Section 5 no longer in operation, there is not a mandate
>> that those ability to elect districts be preserved.  So, what is the
>> possibility that Republicans could draw a plan that is even more
>> advantageous for Republicans by engaging in a bit of retrogression that
>> would have previously been blocked by Section 5?  (Recognizing, of course,
>> that such retrogression might open up a Section 2 claim and also that it
>> may be difficult for Republicans to have any greater advantage than they
>> already do in the state legislature.)  I don’t think this question is
>> totally out of left field as I vaguely recall Tom DeLay saying in the
>> context of the re-redistricting of Texas in the early 2000s that he could
>> have drawn an even more Republican plan if Section 5 had not stood in his
>> way.
>>
>>  Best,
>> Mike
>>
>>
>>
>>
>>
>>
>>  On Mar 25, 2015, at 12:28 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>>
>>  And in the last sentence "not" should be "now"
>>
>> haste makes waste
>>
>>
>> On 3/25/15 9:24 AM, Rick Hasen wrote:
>>
>> In the second to last paragraph, the word "precinct" should be "pretext."
>>
>>
>> On 3/25/15 9:15 AM, Rick Hasen wrote:
>>
>>  Opinion Analysis: A Small Victory for Minority Voters, or a Case with
>> “Profound†Constitutional Implications?
>> <http://electionlawblog.org/?p=71257>
>>  Posted on March 25, 2015 9:14 am <http://electionlawblog.org/?p=71257>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> *[cross-posted at SCOTUSBlog.]*
>>
>> It is easy to read the Supreme Court’s 5-4 decision
>> <http://www.supremecourt.gov/opinions/14pdf/13-895_o7jq.pdf> in *Alabama
>> Legislative Black Caucus v. Alabama*
>> <http://www.scotusblog.com/case-files/cases/alabama-legislative-black-caucus-v-alabama/>
>>  and *Alabama Democratic Conference v. Alabama*
>> <http://www.scotusblog.com/case-files/cases/alabama-democratic-conference-v-alabama/>
>>  as a mostly inconsequential case giving a small, and perhaps only
>> temporary, victory for minority voters in a dispute over the redrawing of
>> Alabama’s legislative districts after the 2010 census. Indeed, although
>> the Supreme Court sent this “racial gerrymandering†case back for a wide
>> and broad rehearing before a three-judge court, Alabama will be free to
>> junk its plan and start over with one that may achieve the same political
>> ends and keep it out of legal trouble. But Justice Scalia in his dissent
>> sees the majority as issuing “a sweeping holding that will have profound
>> implications for the constitutional ideal of one person, one vote, for the
>> future of the Voting Rights Act of 1965, and for the primacy of the State
>> in managing its own elections.†Time will tell if Justice Scalia’s
>> warning against the implications of what he termed a “fantasticalâ€
>> majority opinion is more than typical Scalian hyperbole. And we may know
>> soon enough as these issues get addressed in racial gerrymandering cases
>> from Virginia
>> <http://www.washingtonpost.com/local/virginia-politics/court-throws-out-virginia-congressional-map/2014/10/07/97fb866a-4e56-11e4-8c24-487e92bc997b_story.htm>
>> , North Carolina
>> <http://www.southerncoalition.org/north-carolina-supreme-court-upholds-racially-gerrymandered-districts/>
>>  and elsewhere
>>
>> * * *
>>
>> As explained in this case preview
>> <http://www.scotusblog.com/2014/10/argument-preview-racial-gerrymandering-partisan-politics-and-the-future-of-the-voting-rights-act/>,
>> this case concerns a challenge to state legislative districts drawn by the
>> Alabama Legislature after the 2010 census. The legislature, newly
>> controlled by Republicans, drew a redistricting plan that contained the
>> same number of majority-minority Senate districts and one additional
>> majority-minority House district compared to the 1990s plan drawn by a
>> court and the 2000s plan drawn by a Democratic legislature. Because of
>> population shifts and declines, as well as the composition of the original
>> 2001 districts, the African-American districts were the most underpopulated
>> of all the districts, meaning that many voters had to be shifted into these
>> districts to comply with “one person, one vote†requirements.
>>
>> The state legislative leaders in charge of redistricting set as a goal a
>> deviation in population of no more than two percent across districts.
>> Further, the leaders instructed the consultant charged with redistricting
>> to maintain not only the same number of majority-minority districts in the
>> two state houses but also the same percentage of African Americans
>> *within* each district. The leaders and consultant indicated they kept
>> the same percentage of African-American voters in each majority-minority
>> district in order to comply with the non-retrogression principle of Section
>> 5 of the Voting Rights Act.
>>
>> The result of these two commands led to the shifting of many more African
>> Americans into these majority-minority districts. The upshot of these
>> changes in the context of Alabama was to pack more of the state’s African
>> Americans, the state’s most reliable Democratic voters, into fewer
>> districts, thereby strengthening Republican voting power in districts
>> throughout the rest of the state.
>>
>> Black and Democratic legislators, voters, and groups brought a number of
>> challenges to the state redistricting plan, including a vote dilution
>> challenge under Section 2 of the Voting Rights Act and racial and partisan
>> gerrymandering claims. A three-judge federal court divided two to one
>> <https://ecf.almd.uscourts.gov/cgi-bin/show_public_doc?2012cv0691-203> on
>> the racial gerrymandering claim, the only claim currently before the
>> Supreme Court. To win on a racial gerrymandering claim
>> <http://scholar.google.com/scholar_case?case=2057233072475851470&hl=en&as_sdt=6&as_vis=1&oi=scholarr>,
>> the plaintiffs need to show that race was the “predominant factor†in
>> redistricting, more important than traditional redistricting principles. If
>> the state can show it complied with traditional districting principles or
>> even that its intention was purely partisan, not racial, the state would
>> win.
>>
>> The lower court majority sided with Alabama, stating that the Republican
>> post-2010 census plan was just partisan politics no different than what the
>> Democrats did in the 2000 round of redistricting. On the specific question
>> whether the Alabama redistricting plan was an unconstitutional racial
>> gerrymander, the lower court majority held it was not: the state’s
>> predominant motive in redistricting was complying with the two-percent
>> population deviation maximum as part of the “one person, one voteâ€
>> principle, not dividing voters on the basis of race. Further, the court
>> held that any division of voters on the basis of race was justified by the
>> state’s requirement to comply with the non-retrogression principle of
>> Section 5 of the Voting Rights Act.
>>
>> The dissent disagreed on all counts, arguing that race was the
>> predominant factor in redistricting, and Section 5 did not require the
>> maintenance of the same percentage of minority voters in each
>> majority-minority district. Further, since the Supreme Court’s 2013
>> decision in *Shelby County v. Holder
>> <http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/>,* holding
>> the preclearance formula unconstitutional, eliminated the preclearance
>> requirement for Alabama, compliance with Section 5 could no longer be a
>> compelling interest to justify a racial gerrymander.
>>
>> * * *
>>
>> In the Supreme Court, Justice Kennedy sided with the more liberal
>> Justices, over the objections of the four more conservative Justices, to
>> rule against Alabama and send the case back for a do-over. Much of the
>> dispute between the majority and the dissent concerned issues likely to be
>> unimportant in other voting cases: whether one of the sets of plaintiffs
>> had standing and whether a key argument of the parties was preserved on
>> appeal. Justice Breyer’s majority opinion even included an appendix to
>> show where an argument was raised in the court below.
>>
>> The majority said that the lower court erred in considering whether
>> Alabama’s legislative redistricting plan *as a whole* was an
>> unconstitutional racial gerrymander. The majority sent the case back to a
>> lower court to consider the issue on a *district-by-district* basis. It
>> said that the lower court could consider new evidence as well as other
>> claims which the Supreme Court did not reach, such as the one person, one
>> vote challenge.
>>
>> But the Supreme Court majority did more than simply send the case back
>> for a new hearing. It very strongly suggested that at least some of the
>> districts were unconstitutional gerrymanders. It began by taking away two
>> of the state’s strongest arguments.
>>
>> First, the Court said Alabama was wrong to the extent it believed that
>> Section 5 of the Voting Rights Act required Alabama to pack more
>> African-American voters into districts in order to keep the same percentage
>> of African-Americans in each majority-minority district. This was a
>> misreading of what Section 5 required and such a reading could actually
>> hurt minority voters.
>>
>> Second, the Court said that Alabama could not point to its desire to have
>> more equally populated districts as its real predominant factor in
>> redistricting. In other words, the majority rejected the argument that the
>> state could not engage in racial gerrymandering if its first order of the
>> day was to maintain equally populated districts. The majority took
>> compliance with this one person, one vote out of the equation, saying this
>> was something that was a “background†rule to be considered *before*determining
>> whether race is a predominant factor. It calls into mind Daniel
>> Lowenstein’s critique
>> <http://www.jstor.org/discover/10.2307/1229324?sid=21106239815023&uid=2&uid=4>
>>  of the predominant factor test from *Shaw v. Reno* as nonsensical when
>> it comes to how legislatures decide how to redistrict.
>>
>> In the end, the majority all but instructed the lower court to find that
>> at least some of the districts were unconstitutional racial gerrymanders:
>> “For example, once the legislature’s ‘equal population’ objectives
>> are put to the side—i.e., seen as a background principle—then there is
>> strong, perhaps overwhelming evidence that race did predominate as a factor
>> when the legislature drew the boundaries of Senate District 26, the one
>> district the parties have discussed here in depth.â€
>>
>> The Court then left open the question whether compliance with Section 5
>> could be a compelling interest to justify what would be an otherwise
>> unconstitutional racial gerrymander and, no doubt at the urging of Justice
>> Kennedy, added this sentence: “Finally, we note that our discussion in
>> this section is limited to correcting the District Court’s misapplication
>> of the ‘predominance’ test for strict scrutiny discussed in *Miller*,
>> 515 U. S., at 916. It does not express a view on the question of whether
>> the intentional use of race in redis­tricting, even in the absence of
>> proof that traditional districting principles were subordinated to race,
>> triggers strict scrutiny. See *Vera*, 517 U. S., at 996 (KENNEDY, J.,
>> concurring).â€
>>
>> * * *
>>
>> Justice Scalia, who wrote the principal dissent, argued mostly on the
>> question of standing and on whether the district-by-district issue was
>> preserved on appeal. He believed that the case was not properly litigated
>> or the issues preserved: “This disposition is based, it seems, on the
>> implicit premise that plaintiffs only plead legally correct theories. That
>> is a silly premise. We should not reward the practice of litigation by
>> obfuscation, especially when we are dealing with a well-established legal
>> claim that numerous plaintiffs have successfully brought in the past.â€
>> Despite his opening hyperbolic statement, Justice Scalia offered very
>> little to explain what parade of horribles would result from the
>> interpretation of the racial gerrymandering claim in this way. Justice
>> Thomas, while joining (along with the Chief Justice and Justice Alito) in
>> Justice Scalia’s dissent, dissented separately as well, to express his
>> disagreement more broadly with Voting Rights Act jurisprudence and the
>> permissible consideration of race in redistricting.
>>
>> * * *
>>
>> What is the significance of today’s *Alabama* ruling? It seems likely
>> on remand that at least some of Alabama’s districts will be found to be
>> racial gerrymanders. This means that some of these districts will have to
>> be redrawn to “unpack†some minority voters from these districts. But do
>> not be surprised if Alabama preempts the lawsuit by drawing new districts
>> which are less racially conscious but still constitute a partisan
>> gerrymander which helps the Republicans have greater control over the
>> Alabama legislative districts. As I have noted, lurking in the background
>> of this case is the “race or party
>> <http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>â€
>> problem: with most Democrats in Alabama being African Americans and most
>> Republicans being white, how does one determine
>> <http://www.slate.com/articles/news_and_politics/jurisprudence/2014/11/alabama_redistricting_supreme_court_did_legislators_redraw_district_lines.html>
>>  whether a predominant factor in gerrymandering is race or party?
>>
>> On that score, the case may have somewhat broader implications even if
>> not the earthshattering ones promised by Justice Scalia. Although
>> Republican states which pack minority voters into districts can no longer
>> claim to do so to comply with Section 5 of the Voting Rights Act (thanks to
>> the*Shelby County* case), they still may claim to do so to comply with
>> Section 2 of the Act. Indeed, asProfessor Justin Levitt has shown
>> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2487426>, minority
>> packing and reliance on the Voting Rights Act has become a familiar tool
>> for Republican legislatures looking to gain advantage by packing likely
>> Democratic voters into a smaller number of districts. Many Democrats and
>> minority voters have challenged such plans as unconstitutional racial
>> gerrymanders.
>>
>> Today’s *Alabama* decision gives these challengers a new tool, making
>> it harder for states to use compliance with the Voting Rights Act as a
>> precinct to secure partisan advantage. All in all, this may help stop some
>> egregious gerrymanders, but there will still be plenty of ways for states
>> to draw district lines for partisan advantage without running afoul of the
>> Voting Rights Act. And depending upon how the Court decides the Arizona
>> redistricting case
>> <http://www.scotusblog.com/case-files/cases/arizona-state-legislature-v-arizona-independent-redistricting-commission/?wpmp_switcher=desktop>
>>  later this term, states may have even a freer hand to draw lines for
>> nakedly political purposes.
>>
>> So chalk this up as a small, albeit real, victory not only for minority
>> voters but also for irony. The “racial gerrymander†cause of action,
>> which was the basis for conservatives to challenge the creation of extra
>> majority-minority districts under the Voting Rights Act, has not become a
>> tool by those who hate the cause of action to protect minority voting
>> rights.
>>
>>   <Mail Attachment.png>
>> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71257&title=Opinion%20Analysis%3A%20A%20Small%20Victory%20for%20Minority%20Voters%2C%20or%20a%20Case%20with%20%E2%80%9CProfound%E2%80%9D%20Constitutional%20Implications%3F&description=>
>>   Posted in redistricting <http://electionlawblog.org/?cat=6>, Supreme
>> Court <http://electionlawblog.org/?cat=29>, Voting Rights Act
>> <http://electionlawblog.org/?cat=15>
>>
>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>>
>>
>>
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>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>>
>>
>>
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>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
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> Nicholas O. Stephanopoulos
> Assistant Professor of Law
> University of Chicago Law School
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